Wisconsin Court of Appeals: DFE is Not an Intoxicant Under OWI Law

In State of Wisconsin v. Marilyn Torbeck, the Wisconsin Court of Appeals answered the question of whether a person was guilty of operating while intoxicated for driving after huffing DFE, a chemical people inhale to get high.

What Happened in the Case

Ms. Torbeck was charged with operating while intoxicated-third offense after a crash landed her in the hospital. An investigating officer discovered she had huffed the chemical DFE.

DFE is more formally known as 1,1-difluoroethane. DFE is commonly found in aerosol spray cans, such as from the brand Dust-Off. DFE causes short and intense highs, and has serious impairing effects on the user.

In Court, Ms. Torbeck filed a motion claiming that DFE is not an “intoxicant” within the meaning of the Wisconsin OWI law. The Court agreed and dismissed the case.

On Appeal

Wisconsin Law provides that no person shall drive or operate a motor vehicle while under the influence of an intoxicant, a controlled substance, a controlled substance analog, or drug, or any combination.

The Court quickly concluded that DFE was neither a drug, a controlled substance, a controlled substance analog. A drug has a broad definition under Wisconsin law, but DFE did not fall under any category of drug, as DFE has never been recognized as a drug.

The question before the Court became is DFE an intoxicant?

Is DFE an Intoxicant?

The Court looked to the dictionary definition of intoxicant. An intoxicant, according to Merriam-Webster, is something that intoxicates, and “intoxicate” is defined as “to excite or stupefy by alcohol or drug especially to the point where physical and mental control is markedly diminished.”

The Government argued that DFE is a substance that causes euphoria and diminishes motor control. Torbeck argued that DFE is still not an intoxicant because it is neither alcohol onr a drug.

In the end, the Court upheld the dismissal of the operating while intoxicated charge on the grounds that DFE was not an intoxicant. The Court did suggest to the Government that it charge Ms. Torbeck with reckless driving.

Epilogue

This article is only current at the time it was written. The laws do change. Wisconsin law may now provide that driving under the influence of an inhalant chemical such as DFE violates the OWI law. In Michigan, the legislature added inhalants to the OWI law only relatively recently. As a Michigan attorney, I do not stay current on Wisconsin laws, but I would hazard a guess that Wisconsin law has been updated to include inhalants use as an OWI crime.

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Call Sam Bernstein at 734.883.9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is a criminal defense attorney in Ann Arbor and Ypsilanti.

ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.

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